Gaylord v. Knapp
New York Supreme Court
Appeal from a judgment in favor of the defendant, entered upon the report of a referee. The action was brought to recover a deficiency arising upon a sale had on the foreclosure of a mortgage. . The referee found “ that on or about the 7th day of April, 1870, the defendant in this action purchased of Richard Knapp, deceased, who then and there sold and conveyed to said defendant the premises in the complaint in this action described, for the price of $5,500, to secure the…
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Appeal from a judgment in favor of the defendant, entered upon the report of a referee. The action was brought to recover a deficiency arising upon a sale had on the foreclosure of a mortgage. . The referee found “ that on or about the 7th day of April, 1870, the defendant in this action purchased of Richard Knapp, deceased, who then and there sold and conveyed to said defendant the premises in the complaint in this action described, for the price of $5,500, to secure the payment of which, the said defendant gave to said Richard Knapp a mortgage as in the complaint in this action set forth. “…
1Opinion of the Court
Learned, P. J. :
The referee finds that there was no bond executed with the mortgage. That finding is sustained by the evidence. No bond was found among the papers of the testator. The mortgage was found, and the bond would probably have been with it. There ■was evidence given that no bond had been executed. The recital in the mortgage of the existence of the bond is evidence of that fact. But it is not conclusive. The mortgage is valid, although there was no bond. And it is not necessary, therefore, to the validity of the mortgage, that the mortgagor should be estopped from denying the…
2Cases cited4 opinions
- Champlain & St. Lawrence Rail Road v. ValentineNew York Supreme Court · 1853
- Reed v. . McCourtNew York Court of Appeals · 1869
- Hone v. FisherNew York Court of Chancery · 1848
- Severance v. GriffithNew York Supreme Court · 1870